1500306 (Migration)

[2015] AATA 3414

1500306 (Migration) [2015] AATA 3414 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chipo Rumbidzai Hove

CASE NUMBER:  1500306

DIBP REFERENCE(S):  BCC2014/1814909

MEMBER:Fraser Syme

DATE:1 September 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 01 September 2015 at 11:10am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 December 2014 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 24 July 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of information and organisation professional. She is nominated by her employer, Debt Cutter. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because she had not been employed in the nominated occupation for three years at the time of making the visa application.

6. The applicant appeared before the Tribunal on 31 August 2015 to give evidence and present arguments. She was accompanied by her sister as a support person.

7. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has been employed in the occupation of the nominated position for three years at the time she applied for the visa.

   Skills assessment and prior employment

9. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

10. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060. There is no question that the applicant is clearly not a member of any of the classes of persons specified in that instrument.

11. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 13/020. It is not in question too that the applicant provided to the delegate a positive skills assessment from VETASSESS (the relevant skills assessing authority) dated 25 July 2014.

12. What is in question is whether the applicant meets the requirement that she must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

13. At the time she applied for the visa, the applicant provided evidence she had worked at Debt Cutter since 3 June 2013 and that from 18 December 2010 to 5 June 2013, she worked as a casual checkout operator with Coles.

14. Before the Tribunal, the applicant tried to demonstrate that her work experience with Coles involved skills transferable to her current position with Debt Cutter. She thought she could do so because of the generalist nature of her nominated position. The Tribunal noted from the dates she worked at Coles corresponded with her time in Australia on a student visa. She agreed that was correct and that she was limited to working 20 hours per week while her studies were in session. She sought to emphasise she was a supervisor, which required her to demonstrate higher level skills. The Tribunal accepted that may be the case and it may be some of the skills she used as a checkout operator she used in her current position. However, she was not working as an information and organisation professional with Coles. She was a checkout operator. The Tribunal noted the significant difference in her remuneration with each employer is indicative they are not the same occupation.

15. The applicant provided the Tribunal with reference letters too from her Church, a charity and a money remittance business at which she had previously ‘worked’. The applicant confirmed these were all voluntary positions. She sought to emphasis she demonstrated organisation and management skills in each position. Although it was mindful the letters demonstrated the efforts of the applicant with each organisation and the high regard she was held in by the authors, the Tribunal again noted these were not occasions where she was employed as an information and organisation professional.

16. The Tribunal discussed with the applicant too the reference letter she provided from Debt Cutter dated 24 August 2015. It noted that her employer considered her role with the business an important one. However, that letter still states her start date with Debt Cutter as June 2013. She explained there are approximately 20 staff in her office and another 1-2 consultants in each of the other states. She believes her role with Debt Cutter is irreplaceable.

17. The Tribunal put to the applicant it understood she was seeking to demonstrate how her previous work experience with Coles and her voluntary activities with the Church, charity and money remittance business allowed her to build the skills to perform the duties she now does with Debt Cutter. However, the requirement in the visa criteria is that she has 3 years of work experience in the occupation of information and organisation professional, not 3 years work experience generally.

18. The Tribunal is not satisfied the applicant’s prior work experience with Coles, or her voluntary activities with the Church, charity or the money remittance business amount to her having worked in the nominated occupation of information and organisation professional. The Tribunal accepts that from June 2013 she was employed in the nominated occupation, but that means as at the time of applying for the visa in December 2014, she had worked in the nominated occupation for only 18 months, not the required 3 years.

19. Therefore, the applicant does not meet the requirements in cl.186.234.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    Ministerial intervention

21. The Tribunal is sympathetic to the circumstances of the applicant. She now has been employed in the occupation of the nominated position for more than two years and is well regarded by her employer. The Tribunal discussed with the applicant that she may apply for pursuant to s.351 for the Minister to consider exercise of his discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has decided not to refer the applicant’s matter to the Minister. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Fraser Syme
    Member